Author: Jansen F. de Almeida

Source: Valor Econômico - São Paulo / SP - 01/06/2010

It is scheduled for June 8 of this year to deliver the preliminary draft of the new Civil Procedure Code to the Federal Senate, prepared by the commission of jurists, which will monitor the legislative work until its approval in the National Congress.

The new legal order requires ensuring the implementation of the fundamental rights provided for in the Federal Constitution, including the principle of reasonable duration of the process, including satisfactory activity, that is, the full surrender of the right to the citizen.

In this context, constitutional command would be lacking if the procedure by which effective State protection is sought, in this case civil proceedings, did not conform to the desires permeated by the legislator, adding to other principles, such as human dignity and efficiency public service provision. Late justice is not justice, Rui Barbosa said. And there is no worse disorder than injustice.

The current code, despite all the reforms, has not proved to be sufficient, although contaminated by the usual liturgies and formulas still in force. Ally with the excessive number of demands. More than 250 thousand resources are processed at the STJ each year. Today there is a possibility, believe it, that approximately 40 appeals will be filed in the first degree process.

As required, the proposed changes address this dysfunction, without obviously scorching due process, contradictory and wide-ranging defense. The innovations, on the other hand, are not abrupt to the point of breaking an entire established system, but to improve it within the need and common sense.

The unification of deadlines, the reduction of merely delaying resources, the valorization of conciliation as an ideal of social pacification, the reduction of procedures, the abolition of excess formalism, the use of information technology as a way of speed and objectivity, lead us to the conviction of we are on the right path.

It can no longer be accepted that someone has a judicial response in one way and another person in another, when the question is exactly the same for both. If all claims are homogeneous, of mass, they must be treated equally by our Justice, notably after being widely debated.

I cite an example for clarification: a judge of the first degree recognizes the illegality of collecting a tax based on peaceful decisions and consolidated by the jurisprudence of the STJ or STF, in numerous judgments on the same legal issue.

His neighbor, in the same matter of law, is condemned to pay the same tax because another monocratic judge understands that the charge is legal, differently from the one imposed by the higher courts.

This, in fact, is inequality before justice. Social stability and legal security are the cornerstone of the Judiciary. This example cited occurs commonly in everyday forensics. With the proposed changes, this will no longer occur.

In fact, the existence of swift and equal instruments, with the creation of the incident of resolution of repetitive actions, will also make possible the speed, efficiency, security and legal stability to the parties. Several actions that deal with the same issue of law, which are capable of generating serious legal uncertainty and multiplication of cases, can be resolved quickly.

I bring one more example: today, in most courts, most of the actions are for reviewing the bank contract.

Let us suppose that there are thousands of demands raising the illegality of a certain fee charged by banks. By the proposal, in summary, the judge, or the judge, any of the parties, the Public Defender's Office or the Public Prosecutor's Office, raises to the court the incident of resolution of repetitive actions. In other words, it is requested that the High Court decide, from the outset, whether or not it is illegal to charge this fee.

Immediately, I accept the incident, all identical processes in that State are suspended, and the court adjudicates the legal issue, with its organs bound to accept what was decided in the collegiate decision.

Thus, those cases suspended in the first and second degree will be judged one by one, however, they must obey the command of the superior instance regarding the question of law. In other words, if the court decides that charging the fee is legal, the judge cannot judge by saying that it is illegal.

All interested parties will be able to participate in the process, including appealing the decision of the Federal State or Regional Court to the STJ or STF.

It is expected, with these modifications, especially with regard to the incident of resolution of repetitive actions, to reduce by up to 70% the processing time of a process.

It is evident, as can be seen, that the new code puts an end to this discrepancy in the differentiation of legal treatment for the parties and the postponement of the enforcement of the right, and without prejudice to the qualification of the judicial response, combined with speed.

It should be noted, however, that the rigging of first-degree justice will be an imperative measure for the objective set, by the way, the goal of the National Council of Justice, a body that has been striving for strict compliance with the legality of the acts of the courts in the field administrative, being essential, especially for the reasonableness and firmness of its decisions.

Also noteworthy is the massive popular participation in the elaboration of the preliminary project, either because of the proposals collected in public hearings by the main capitals of the country, or also because of the material materials sent by class entities and educational institutions, in addition to those brought by citizens in the Federal Senate website.

All were analyzed. Approximately 80% were already in the Commission's line of thought. Of those that had not been approached, therefore innovative, an average of 80% were also welcomed. It is known, by simple statistics, convergence of ideals and ideas, and that the yearnings are common. The time is now. The code belongs to the Brazilian nation, without a doubt.

Finally, it is worth remembering that this is the first Civil Procedure Code to be approved in a Democratic State under the Law, differently, therefore, from the previous ones. A truly popular law!

Jansen Fialho de Almeida is a judge in the Federal District and a member of the Committee of Jurists of the new CPC

This article reflects the views of the author, and not of Valor Econômico newspaper. The newspaper is not responsible and cannot be held responsible for the above information or for losses of any kind due to the use of this information.